The women and the trial

Last updated 16:01 03/07/2012

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The two lovely-looking women separated from their husbands - one by death and the other by the distance from the witness box to the dock.

The faces of Anna Macdonald and Kylee Guy became the identifying images of the Scott Guy murder trial as much as the accused, Ewen Macdonald.

They were made all the more visible because they gave evidence repeatedly, Mrs Macdonald six times.

Mrs Guy was to give evidence five times but ended up with four court appearances and her fifth piece of evidence was read to the jury by the registrar.

Scott Guy's father Bryan went into the witness box eight times and his mother Joanne was to have given evidence twice but made it plain she was in distress and chose to get her evidence over in a single appearance rather than having to return later in the trial.

The decision on how to present the evidence, and whether to split witness' evidence into phases, lies with the Crown prosecutors, in the Guy trial Palmerston North Crown Prosecutor Ben Vanderkolk who remained in control when the trial was shifted to Wellington.

The Wellington Crown Prosecutor is Grant Burston who wrote the trial process section of Cross On Evidence the leading text on the law of evidence in New Zealand. He has been a prosecutor since 1985.

In that time he has seen developments in the way evidence is presented, in part because of the visual aids that new technology makes possible. Also, more than 20 years ago landmark jury research focused attention on what would most help jurors follow potentially confusing narratives.

Part of that is deciding what is the best way to set out the Crown's allegations, and that does not always mean setting out the evidence chronologically, Mr Burston says.

It has been described as being like a film director, panning in and out, speeding up the action over the less important parts and slowing down on others to effectively inform the jury. But everything presented to a jury is still subject to the judge's permission.

Sometimes a prosecutor may want to start with the incident itself and then go back to the events that led up to it.

Some witnesses give evidence relevant to several phases of a trial so they might give evidence more than once, but those are usually the most complex and serious cases and it is still more common for police or other professional witnesses, rather than civilians, to be repeat witnesses.

The Crown is not to call evidence that is unduly repetitive or costly, or delays the trial. In deciding to call witnesses more than once a prosecutor has to take account of whether the inconvenience to the witness and increased cost is justified.

Witnesses would also be consulted about whether they had strong views one way or the other, and the additional trauma of giving evidence more than once is an important factor, Mr Burston says.

The jury research had focussed attention on the importance of visual aids.

"It did not change the way we presented cases but it caused us to focus on aspects of it."

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For instance, jurors stressed that it is important to get to the point.

''For many cases there is a blueprint but for others you have to think carefully and change it accordingly,'' Mr Burston says.

Incorporating new technology has not always gone smoothly. At a murder trial in 2000 the Crown was refused permission to use a power-point presentation as part of the evidence on grounds that included a defence lawyer persuading the judge that it might contain subliminal messages.

''A defence lawyer would not put forward objections on that basis these days and nor would any judge entertain it,'' Mr Burston says.

In the High Court it has become routine for photographs to be projected on to a large screen so everyone's attention is focussed on that and witnesses can identify features with a laser pointer. Mr Burston considers that a watershed in the way evidence is presented in Wellington and an advance on the potentially error-ridden process of having jurors leaning forward and squinting at a witness across the room holding up a small photograph and pointing with their finger.

Chronologies and timelines giving references to exhibits, photographs, images from closed-circuit television, text messages or the timing of phone calls can increase a jury's understanding of how the evidence fits together.

''It is useful and powerful evidence but it adds to the length and complexity,'' Mr Burston says.

When Mr Burston began working as a prosecutor an accused's person's statement to police was taken down in writing or typed by a police officer who would then read it to the jury. Now a jury gets to see the accused speaking to police, in a recording made of the interview.

Mr Burston says he can see that recorded interview technique being used more often for witnesses in future.

Witnesses might still have to be cross-examined in person at the trial but the base for their evidence might be the statement they gave police when events were fresher. Giving evidence would not become the memory test that it sometimes is now. It would also be less stressful if at least part of the witness' evidence was in recorded form, Mr Burston says.

- The Dominion Post

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